Citation Nr: 24005014 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 15-43 231 DATE: February 1, 2024 ORDER Entitlement to service connection for a throat disability is denied. FINDING OF FACT The evidence persuasively weighs against a finding that the Veteran has a current throat disability during the appeal period or proximate thereto, to include symptoms that caused functional impairment that affects earning capacity. CONCLUSION OF LAW The criteria for entitlement to service connection for a throat disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to February 1975. The Veteran testified at a Board videoconference hearing before the undersigned Veteran's Law Judge in February 2019. In April 2019, the Board remanded the claim further development, to include obtaining updated VA treatment records and private medical records from a Springfield, Ohio hospital, and to schedule an examination for the claimed throat disability. The Veteran was afforded an oral and dental conditions, including mouth, lips and tongue, Disability Benefits Questionnaire (DBQ) in December 2019 and service connection for bilateral mandibular tori was granted as a result, in October 2020. DBQs for sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx, and temporomandibular disorders were provided in November 2020. In September 2019, VA sent correspondence to the Veteran to request that VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), be completed for private treatment records from the Springfield, Ohio, hospital which treated the Veteran for bilateral mandibular tori, so VA could obtain the treatment records on his behalf. The Veteran did not submit the requested authorizations for VA to attempt to obtain the private medical records. Updated VA medical records were associated with the claims file in September 2019 and August 2020. As a result, the Board finds there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). At the time of the April 2019 remand, the Board had characterized the issue as service connection for "bilateral mandibular tori, claimed as throat condition." As service connection for bilateral mandibular tori has been granted, that particular disability is no longer on appeal. Entitlement to service connection for a throat disability. The Veteran seeks service connection for a throat disability that he asserts was incurred in or otherwise related to service. The Veteran testified during the February 2019 Board hearing that he first noticed a throat condition while in service and was spitting up blood. He reported that a surgical procedure was performed inside his throat. The Veteran reported residual effects of difficulty swallowing and that he was on a soft diet. He stated that he did not eat much, often leaving half of his food for another time because it took him so long to eat. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. After a careful review of the evidence of record, the Board finds that the persuasive weight of the evidence is against a finding that the Veteran has a current throat disability during the appeal period, to include a disability that causes functional impairment of earning capacity. Therefore, service connection for a throat disability is not warranted. The reasons follow. In December 2019, the Veteran was afforded a VA oral and dental conditions including mouth, lips, and tongue DBQ. The examiner noted a diagnosis of tori and that the Veteran reported he always had the tori, which was just there and that it was hard to swallow. The examiner made remarks that the Veteran wore upper complete dentures and presented with bilateral tori, but wanted the lower posterior teeth to help chew his food. The examiner provided a positive opinion for tori and provided the rationale that the Veteran stated that he had tori all his life, the area where the tori is positioned and the reason for the surgery on the throat are different from the coughing up blood. In November 2020 the Veteran underwent a VA sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx examination. The examiner found that the Veteran did not have a diagnosis of a sinus, nose, throat, larynx or pharynx condition. The Veteran reported an onset of 1973 with a breakout of lesions in his mouth and then all over his body. The Veteran reported breakouts every 2-3 years and being hospitalized each time. He denied any current lesions and any ongoing treatments or medications other than while in the hospital during breakout of lesions. The examiner indicated that there was no impact on the Veteran's ability to work and no objective evidence of a nose, throat, larynx or pharynx condition at the time, therefore, no diagnosis was rendered. In a November 2020 VA temporomandibular disorders DBQ, the examiner provided a diagnosis of mandibular tori that had an onset in August 2013. The Veteran reported that he noticed growths in his mouth in 2013 and was told they were mandibular tori. The Veteran indicated that he felt there were knots in his mouth with occasional pain while eating and drinking. The November 2020 examiner provided an opinion that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She provided the rationale that there is no medical evidence that the Veteran has a current diagnosis of a throat condition that is due to or the result of or permanently aggravated by the Veteran's service. She noted that the Veteran was evaluated in January 1975 and in December 1974 three times, and at each of these visits the Veteran had complaints of a sore throat, which was a symptom of an upper respiratory infection (URI) and not a separate and distinct medical condition. She noted that the Veteran's medical records also reflected an abscess on his neck in 1973 that required hospitalization. She wrote the abscess is a self-limiting condition of the skin that would not result in a chronic condition of the throat. The examiner noted the Veteran had a normal separation examination in January 1975. The examiner stated that the most likely cause of the Veteran's intermittent sore throat is his herpes simplex virus with oral lesions or symptom of another URI. The examiner also provided a negative opinion as to the diagnosis of mandibular tori. Following the April 2019 Board remand, in an October 2020 rating decision, the Regional Office (RO) granted service connection for bilateral mandibular tori (claimed as a throat condition). The bilateral mandibular tori was referenced during the February 2019 Board hearing, however, the Veteran and his representative asked for consideration for esophagus stricture and laryngeal trauma, or something inside the throat. The Veteran reported symptoms during the November 2020 sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx examination, as involving a breakout of lesions in his mouth and then all over his body with an onset in 1973 and breakouts every 2-3 years with hospitalization each time but denied any current lesions and any ongoing treatments or medications other than while in the hospital during breakout of lesions. As noted above, the examiner found that the Veteran had no disability currently. The available post-service medical records are silent for diagnosis of a throat disability, other than mandibular tori, to include any breakouts of lesions, which the Veteran claimed at the November 2020 examination, during the appeal period or proximate thereto. A March 1998 VA medical record shows the Veteran presented with difficulty swallowing and eruptions on the back of his hands with a noted history of herpes simplex eruptions, first in 1984, and most recently in 1995. He had been treated for herpes simplex virus (HSV) complicated by erythema multiforme with four episodes in the preceding 14 years. It was documented the Veteran had an HSV infection that required hospitalization in July 1995 secondary to bacterial superinfection of herpetic skin lesion was noted. In April 1998, the Veteran was noted to have positive vesicular lesions over the face and hands. The Veteran had dysphagia, probably secondary to viral or bacterial source in the mouth and was to receive a soft mechanical diet. In July 2000, the Veteran's wife called VA reporting the Veteran had a couple of skin lesions similar to what he had previously with emergency medicine related to oral HSV infections but was uncertain whether there were oral lesions at the time. Subsequent VA medical records have been silent for reports of oral lesions, including in September 2003, May 2006, in January 2007 and March 2009. In fact, these treatment records show affirmative clinical findings that the oropharynx was clear without lesions or erythema. The Veteran was noted to have sore throat as a symptom in April 2001 and January 2007, which was related to viral upper respiratory infection/sinusitis and flu, respectfully. In December 2018, the Veteran had a normal ear, nose and throat examination. In January 2007, the Veteran was noted to have a poor appetite, eating one time a day, rarely eating a complete meal and generally eating only about half of any food offered; however, this was not attributed to trouble swallowing or throat pain. Thus, the lesions from HSV were prior to the period on appeal, and is the evidence is consistent with the November 2020 examiner's finding of no objective evidence of a current throat disability. The Veteran was noted to have a regular diet in VA medical records including in October 2011, January 2012, August 2013, February 2014, June 2015, October 2015, July 2016, March 2017, September 2017, March 2018, September 2018, March 2019, September 2019, and May 2020. The Veteran also denied dysphagia, or difficulty swallowing, in June 2015, July 2016, March 2017, September 2017, March 2018, September 2018, March 2019, September 2019, and May 2020. VA medical records, including in March 2018, reference a past history of spitting up blood that was resolved per the Veteran and only a one-time occurrence that he had coughed up from the throat some streaks in the past. While the Veteran reported symptoms of a throat disability of coughing up blood, difficulty swallowing and being on a soft diet, the contemporaneous VA medical records above refute such reports to the contrary during the period on appeal. Thus, the Board finds the Veteran's statements not credible regarding throat symptoms. To the extent that the Veteran asserts he has a diagnosis of a throat disability, lay assertions cannot constitute a competent clinical diagnosis of a throat disability. See 38 C.F.R. § 3.159 (a)(1). The Veteran is competent to relate symptomatology such as pain; however, he is not competent to diagnose an underlying throat disability because he does not possess the requisite medical training or expertise to do so. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds the most probative evidence of record is the November 2020 VA examination reports and opinions (performed by the same examiner). They provide competent and probative evidence that weighs against the Veteran's claim because the examiner reviewed the claims file, interviewed the Veteran, performed appropriate examinations, and provided a medical opinion after she considered the symptoms and history reported by the Veteran, referencing specific medical records. Monzingo v. Shinseki, 26 Vet. App. 97, 105-106 (2012). The examiner found that the Veteran had no current throat disability and also explained that the sore throat complaints in service were a symptom of an upper respiratory infection (URI) and not a separate and distinct medical condition. She had also attributed subsequent intermittent sore throat to herpes simplex virus with oral lesions or symptom of another URI. The Board is mindful of the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the U.S. Court of Appeals for the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. The Veteran has not contended that he has experienced functional impairment affecting his earning capacity related to his claimed throat disability, other than coughing up blood, difficulty swallowing, and a soft diet, which the Board has found not credible, as explained above, and the evidence of record does not show that the Veteran has had other functional impairments. There is no diagnosed throat disability, other than mandibular tori, during the appeal period or proximate thereto, as mentioned above. The persuasive weight of the evidence is against a finding that the Veteran had a throat disability at any time during the period on appeal, to include symptoms that cause functional impairment of earning capacity. As the record does not reflect a current diagnosis of a throat disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that service connection is not warranted, and no further discussion of the remaining elements for determining whether service connection is warranted is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). As the evidence persuasively weighs against the claim for service connection for a throat disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.